1 AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 18, 2020, this matter was referred to me as Triage Judge, for a determination as to how the file is to proceed. See the Notice to the Profession dated March 18, 2020 available at https://www.ontariocourts.ca/scj/cov...uspension-fam/

2 Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.

a. The parties have had joint custody of their now nine year old son since a final order in 2012. Primary residence has always been with the mother.

b. The father has always had access. In 2019 he brought a motion to expand parenting time. That motion is currently outstanding.

c. The most recent access arrangement is set out in a (consent) temporary order dated September 6, 2019. The father has access on alternate weekends from Friday 6:00 p.m. to Sunday at 6:30 p.m.

d. The mother has brought an urgent motion to suspend all in-person access because of COVID-19.

e. The mother expresses concern that the father will not maintain social distancing for the child during periods of access.

f. In any event, the mother says she and her family are practicing social isolation in their home for the duration of the COVID-19 crisis. She doesn’t want her son leaving the home for any reason – including seeing the father.

5 I want to clearly explain why, as Triage Judge, I am not authorizing this matter proceeding as an urgent hearing at this time.

6 The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19. This is an extremely difficult and stressful period for everyone.

7 On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

8 On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

9 Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

10 None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

11 In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

12 In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

13 In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

14 And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

15 Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

17 Each family will have its own unique issues and complications. There will be no easy answers.

18 But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.

19 Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. Despite extremely limited resources, we will always prioritize cases involving children. But parents and lawyers should be mindful of the practical limitations we are facing.

20 If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.

21 We will deal with COVID-19 parenting issues on a case-by-case basis.

a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.

d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

23 Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

24 In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.

25 I have carefully reviewed the materials filed on this case. Even in the absence of responding materials from the father, I have had the benefit of considering the e-mails he exchanged with the Applicant’s lawyer in relation to COVID-19 considerations.

26 While the mother’s concerns about COVID-19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.

27 Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.

a. The disruption of our lives is anxiety producing for everyone.

b. It is even more confusing for children who may have a difficult time understanding.

c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.

d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.

e. Right now, families need more cooperation. And less litigation.

28 I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

29 My denial of authorization to proceed with an urgent motion is without prejudice to the issue being returned to court if more serious and specific COVID-19 problems arise. Any future motion would again have to be reviewed by the Triage Judge. However, I hope that both parents will understand the limitations of the family court process at this critical time.

30 None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.

In the case of Ribeiro v Wright the Hamilton Superior Court of Justice has recently released the first endorsement with respect to urgent matters since COVID-19 measures were put in place. In the case, an Emergency Notice of Motion of Applicant was submitted March 22, 2020 in addition to an Affidavit of the Applicant on same. The urgent motion was brought by one party to suspend all in-person access because of COVID-19. The trial judge has not authorized this matter to proceed as an urgent hearing at this time.

COVID-19 has shown us that our lives have had to be put on hold in many respects, however the court identifies that suspending a child’s access to one parent may be contrary to their best interests due to the risk of emotional harm. The court highlights that now more than ever the child requires love and support from both parents, and that existing parenting arrangements should be presumed to continue subject to any necessary modification to follow COVID-19 precautions. The court outlines that such modifications can include one parent being in the 14 day isolation period due to travel or personal illness. In the case at hand, the motion was brought due to one party believing the other would not obey social distancing policy and despite the court not authorizing this matter as urgent, it did however acknowledge that any reckless exposure to COVID-19 will be met with zero tolerance.

The court has also expressed to clients that if a parent is concerned that COIVID-19 creates an urgent issue relating to parenting, they are indeed able to initiate an emergency motion but they should not presume raising such an issue will result in an urgent hearing. The procedure the court will consider at this time is as follows:

a) The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

b) The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

c) Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.

d) Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

The court is aware of the seriousness of COVID-19 and wants to ensure parents are proceeding in good faith and with mutual respect opposed to abusing the situation. The decision of the court was reached without prejudice to the issue being returned to court if more serious and specific COVID-19 issues arise.

[This post by Russell Alexander first appeared on FamilyLLB.com on March 24, 2020]

Even in the midst of a pandemic, divorced parents will still find a way to battle over their kids. But COVID-19 shouldn’t be used as yet another weapon in their arsenal, urged the ever-eloquent Ontario Superior Court Justice Alex Pazaratz.

“In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner. Vulnerable children need reassurance that everything is going to be OK. It’s up to the adults to provide that reassurance,” he wrote in a decision released this week.

“Right now, families need more cooperation. And less litigation.”

In the March 24 ruling, the Hamilton family court judge refused to allow an urgent motion to proceed by a mother who wanted the father of their nine-year-old son denied all in-person access due to her fears of COVID-19.

Under their current custody arrangement, the dad had their son on alternate weekends. The mom filed her motion electronically on March 22 seeking an emergency hearing to suspend all access because of her worries the father wouldn’t maintain social distancing for their child.

“The mother says she and her family are practicing social isolation in their home for the duration of the COVID-19 crisis,” the judge noted.

“She doesn’t want her son leaving the home for any reason – including seeing the father.”

Strict social distancing right now is important, Pazaratz agreed. Sometimes a parent will have to forego their usual access — for example, if they’re in 14-day isolation due to travel or exposure.

But, he warned, the COVID-19 crisis will not result in the court automatically suspending all in-person parenting time.

“In many respects we are going to have to put our lives ‘on hold’ until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset,” he wrote.

“A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever. ”

However, he added, the court will also have zero tolerance for any parent who recklessly exposes a child to any COVID-19 risk.

Due to the pandemic, the family court is only hearing urgent motions right now and Pazaratz, who is working as the “triage judge,” urged parents and lawyers to try “simple problem solving” before turning to litigation.

Parents are understandably worried and confused about what to do, the judge acknowledged. He also admitted this is “uncharted territory for our court system” but urged everyone to work together to promote both the physical and emotional well-being of their kids.

“The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.”

In turning down the mother’s request for an urgent hearing, the judge said parents would have to provide specific evidence of behaviour or plans by the other parent which are inconsistent with COVID-19 precautions.

“I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future,” Pazaratz wrote.

He then urged both parents to work out these important health and safety issues for their child in a more “conciliatory and productive” manner.

“None of us have ever experienced anything like this,” the judge wisely concluded. “We are all going to have to try a bit harder — for the sake of our children.”

Oh my god, thank you so much for sharing this ... this is exactly what I needed. Justice Pazaratz, as always, has raised some very logical and valid points.

In my situation, although, there is no court order for parenting time right now, but I had been seeing my child EOW. A motion for access was scheduled in first week of April, which has now been adjourned to August timeframe.

Since last week, the mother unilaterally decided all access should be terminated due to covid-19 situation. I assured her I'm following all the health guidelines and even working form home. I pointed out risk is virtually the same in both households, even transportation is thru private vehicle... she wouldn't budge.

Please help me decide if following is an appropriate way to proceed:
-share this case law with opposing counsel. Highlight the main points the judge made and the decision rendered.
-give OC two days to respond/clarify her client's position and state that on third day, I will be filing for an emergency motion to reinstate access.

One muddy point is that ex is saying I can have phone access to the child and when this is over, she will offer makeup time. This way, she can claim that technically, she is not denying access. How long will this situation last? What will make-up time look like? Who knows!

My ex has unilaterally decided to keep our boys safe in his home only. I showed up at March break switch over and was denied. I have spent the past week insisting they be brought home immediately, with the access schedule resuming. I even sent an informal offer to settle of bring them home and we will start a two week schedule. Everything rejected. It was I who initiated phone calls and face time. I have sent as many simple "bring them home now" emails as I could without harassing him.

Do not try to not offend your ex. Send firm and frequent emails telling her she is in breach of status quo and to bring your child(ren) home immediately. I learned that sentence on this forum. Do not be complacent.

Last night and today things were flying between lawyers and clients. We had an agreement shortly after 6 pm this evening. The details don't matter because it had gone south by 9 pm.

I am confused as to why but am fairly certain they are messing with procedure to gain this weekend or more. My lawyer has responded with fix this (whatever the hell "this" is 🤦*♀️) before 9 am Monday morning or she files the urgent motion.

I have asked for clarification from her; the letter was very lawyer-speak. I have yet to here back from her tonight and am not expecting our sons to be returned as agreed upon earlier this evening.

I have been preoccupied. Did Ford say something about alcohol delivery 🤣

My advice would be to send a copy of the case law and a letter that relies on direct quotes from the Honourable Justice Pazaratz and advise both the lawyer and the other parent to govern themselves accordingly and return immediately to the access agreement/order that is in place. That you will seek an emergency motion immediately within the next 5 days after this notice and seek full costs for having to bring this matter and provide the judge a copy of this case law in your book of authorities.

Bingo.
All communication from now on = BIFFF.
Brief, Informative, Firm, Fair, Friendly
Every word will end up in front of someone relevant if only in a costs submission.
Dig deep, stay calmer than you could imagine.

We might be in trouble here. My partner's ex has informed us she is refusing access on the grounds that we visited with my parents yesterday and are not following current social distancing rules.

For context, we have three children - my own who lives with us full time, and his two boys who currently visit us for 3 overnights weekly.

My son has been spending time with my parents every week for 1-2 overnights as they are helping us manage the current lack of childcare. I am still working (essential service but not front line) and my partner is working from home so this support has been very valuable to us.

Considering that my own son is "exposed" to my parents on a regular basis I consider them part of our household. I have a biomedical degree so I am fully aware of the science here. We have not seen anyone else.

Does this constitute a violation of current social distancing rules and grounds for preventing access? My understanding was that families are except.

To start with the kids should not be going to their grandparents. There are thousands of people working from home without child care who are following the recommendations on staying home and your family is not an exception. The kids should be at your homes when they are on his time.

That said, she cannot withhold access. You can file an urgent motion and it will be heard by phone. You may want to start by sending her the decision and outlining that you will seek costs to enforce the parenting time and then have your paperwork ready to file.